Garcia v. State , 427 P.3d 1185 ( 2018 )

2018 UT App 129THE UTAH COURT OF APPEALS
MARIO Y. GARCIA,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20160820-CA
Filed June 28, 2018
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 150902335
Mario Y. Garcia, Appellant Pro Se
Sean D. Reyes and Andrew F. Peterson, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 Mario Y. Garcia began sexually abusing Victim when she
was seven years old. After many years of repeatedly inflicting
abuse upon her, Garcia admitted to his abhorrent acts. He
subsequently was charged and pled guilty to his crimes. The
district court sentenced Garcia to indeterminate prison terms of
fifteen years to life on one charge and three years to life on
another charge, to run consecutively. Garcia did not directly
appeal the district court’s judgment and order, and instead filed
a petition for post-conviction relief. In response, the State filed a
motion for summary judgment, which the post-conviction court
granted, denying Garcia’s petition in its entirety. Garcia now
appeals the post-conviction court’s grant of summary judgment
on several bases. We reject his contentions and affirm.
Garcia v. State
BACKGROUND
¶2 Throughout her upbringing, Victim, who is now an adult,
was sexually assaulted by Garcia. During that time, he forced
her to perform sexual acts, including oral, vaginal, and anal sex.
After many years, Garcia confessed his recurring abuse of Victim
to his wife, as well as his ecclesiastical leader. Soon thereafter, he
also confessed to his immediate family, extended family, and a
clinical psychologist. However, shortly after his admissions,
Garcia began to threaten and harass those around him who
found out about his sexual abuse of Victim. Garcia also sent
Victim multiple text messages telling her that if she put him in
prison she would be in trouble and that she “better think about”
the fact that if he were to be imprisoned, no one would take care
of his family.
¶3 Despite Garcia’s attempts at intimidation, Victim reported
his abuse and the State charged him with two counts of rape of a
child, two counts of aggravated sexual abuse of a child, two
counts of sodomy on a child, two counts of rape, two counts of
forcible sodomy, and two counts of sexual abuse. Garcia pled
guilty to two counts: rape of a child and attempted rape. He
signed a plea affidavit explaining the crimes and acknowledging
that his plea amounted to an admission; the court found his plea
to be knowing and voluntary. 1
1. The plea affidavit explained the crimes to which he was
pleading guilty (rape of a child and attempted rape), the degrees
and elements of each offense, and the punishment for each crime
(“6, 10 or 15 years to [l]ife at the Utah State Prison” and “3 years
to life at the Utah State Prison”). Garcia’s affidavit also
acknowledged that Garcia understood each of the rights he was
waiving by pleading guilty, including the rights to a jury trial, to
confront witnesses, to compel witnesses, to testify in his own
defense, to remain silent, to be presumed innocent, and to
appeal.
20160820-CA 2 2018 UT App 129Garcia v. State
¶4 Notwithstanding his plea, Garcia filed three handwritten,
pro se motions in the months before his sentencing in an attempt
to, in his words, “reduce” or dismiss his conviction. 2 Garcia filed
his first motion with three affidavits 3 and argued that his
sentence should be “reduced” or dismissed for six reasons:
(1) both the prosecution and the defense overlooked “a
significant amount of evidence”; (2) Garcia received excessive
bail and an unconstitutionally lengthy pre-trial confinement;
(3) the prosecution withheld “exculpatory evidence”; (4) the
court lacked jurisdiction due to factual inaccuracies; (5) Garcia’s
defense counsel was ineffective for not seeking reduction in bail;
and (6) Garcia’s defense counsel was ineffective for failing to
collect evidence. Garcia simultaneously filed his second motion,
which reiterated all of these complaints. Four months later,
Garcia filed his third motion, which attempted to withdraw his
guilty plea based on similar arguments to those previously
raised and add two additional claims: failure to procure a
voluntary plea and failure to disclose the applicable statute of
limitations.
¶5 Ultimately, the district court held a sentencing hearing.
There, the district court acknowledged Garcia’s handwritten, pro
se motions and asked Garcia if there was “any other argument
[he]’d like to make” on his motions prior to sentencing. Garcia
2. Defendant’s motion does not clearly articulate what is meant
by “reduce,” other than to dismiss the charges altogether.
3. The three affidavits alleged ineffective assistance of defense
counsel. “Affidavit 1” alleged ineffective assistance during bail
proceedings and pre-sentencing. “Affidavit 2” alleged ineffective
assistance resulting from unconstitutional delay, lack of
communication, conflict of interest, and lack of investigation into
evidence. “Affidavit 3” again asserted that counsel’s alleged
neglect of Garcia’s case prejudiced him while Garcia stayed in
pre-trial confinement for “over 31 months” waiting “for [these
issues] to be properly addressed, defend[ed], and corrected.”
20160820-CA 3 2018 UT App 129Garcia v. State
responded, “[S]o just go ahead and sentence me, I mean, on
whatever you feel in your heart right now.” The district court
commented on the enormity of Garcia’s crimes and sentenced
him to indeterminate prison terms of fifteen years to life on the
first charge and three years to life on the second charge, to run
consecutively. Garcia did not directly appeal the district court’s
judgment and order.
¶6 Instead, Garcia filed a petition for post-conviction relief.
In his petition, he raises several claims, alleging once again that:
(1) defense counsel was ineffective for failing to raise a statute of
limitations defense; (2) defense counsel was ineffective for failing
to adequately investigate—and for not properly preparing a
defense—before pressuring Garcia to plead guilty; (3) Garcia’s
plea was not knowing and voluntary because he “was coerced
[for] a number of reasons, including excessive bail, neglect,
ineffective assistance of counsel, time coercion, threat[,] and
duress”; (4) “the prosecution failed to disclose to the defendant”
the applicable statute of limitations, including “the approximate
date of the occurrences of the allege[d] crimes, and the correct
age of the allege[d] victim”; and (5) Garcia was denied the right
to appeal.
¶7 The State countered by moving for summary judgment.
The post-conviction court granted the State’s motion and denied
Garcia’s petition in its entirety. The court ruled that claims two,
three, and four were procedurally barred because Garcia had
already raised them in his pro se motions during the criminal
proceedings. It further determined that all five of the claims
were meritless. Garcia now appeals the post-conviction court’s
grant of summary judgment. We find his arguments
unpersuasive and affirm.
ISSUE AND STANDARD OF REVIEW
¶8 We review a post-conviction court’s grant of summary
judgment for correctness, granting no deference to the lower
20160820-CA 4 2018 UT App 129Garcia v. State
court. Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345. We will affirm
such a decision “when the record shows that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Id. (cleaned up); see also Utah
R. Civ. P. 56(a). “In making this assessment, we view the facts
and all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” Ross, 2012 UT 93, ¶ 18
(cleaned up).
ANALYSIS
¶9 In his post-conviction petition, Garcia raises several
claims: ineffective assistance regarding a statute of limitations
defense (Claim One); ineffective assistance regarding adequate
investigation and proper preparation (Claim Two); failure to
procure a knowing and voluntary plea (Claim Three); failure to
disclose the applicable statute of limitations (Claim Four); and
denial of the right to appeal (Claim Five). All five of Garcia’s
contentions fail for the following reasons: Claim One lacks merit;
Claims Two, Three, and Four are procedurally barred; and
Claim Five is not cognizable under Utah’s Post-Conviction
Remedies Act (the PCRA). We address each reason in turn.
I. Meritless Claim
¶10 Claim One contends that Garcia received ineffective
assistance of counsel due to counsel’s failure to assert a criminal
statute of limitations defense. Garcia’s argument fails for two
reasons. First, Garcia conceded this issue during oral argument
on the State’s summary judgment motion. Second, even if he had
not conceded it, his contention falls short because the statute of
limitations (1) never began to run in this case, and (2) was
abolished altogether in 2008, compare Utah Code Ann.
§ 76-1-305.5 (LexisNexis 2008), with id. § 76-1-303.5 (1999)—
before the State charged Garcia with any offenses—allowing the
State to bring charges at any time. Based on this nullification,
any defense implicating the statute of limitations is meritless. See
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State v. Lusk, 2001 UT 102, ¶ 28, 37 P.3d 1103 (holding that
“[b]ecause statutes of limitations are procedural in nature, a
legislative amendment enlarging a limitation period may be
applied retroactively to crimes committed before the amendment
where the limitations defense has not accrued to the defendant
before the amendment becomes effective”); Lucero v. State, 2016
UT App 50, ¶¶ 1, 12, 369 P.3d 469 (holding that “the 2008
enactment enlarging the limitations period retroactively applied
to the crimes . . . committed before 2008”).
¶11 Further, even if the prior statute of limitations had
applied, it would not have begun to run until Victim first
reported the incident to law enforcement. See Utah Code Ann.
§ 76-1-303.5 (1999) (providing that a prosecution for sexual abuse
of a child may be commenced “within four years after the report
of the offense to a law enforcement agency”); Lucero, 2016 UT
App 50, ¶¶ 1, 12 (holding that a “limitations defense had not
accrued” since the “limitations period had not yet expired—let
alone been triggered—because . . . [the crimes] had not been
reported to a law enforcement agency at the time of the repeal of
the earlier statute in 2008” (cleaned up)). Here, Victim did not
report the crime until 2010, meaning that even under the prior
statute, the State had until 2014 to file charges. Consequently,
any defense implicating the statute of limitations lacks merit,
rendering futile any argument on that basis. And the “failure of
counsel to make motions or objections which would be futile if
raised does not constitute ineffective assistance.” State v. Whittle,
1999 UT 96, ¶ 34, 989 P.2d 52 (cleaned up). Accordingly, the
post-conviction court correctly granted the State’s summary
judgment motion on Claim One.
II. Procedural Bar
¶12 Garcia’s petition alleges (1) ineffective assistance
regarding investigation and adequate preparation (Claim Two),
(2) failure to procure a knowing and voluntary plea
(Claim Three), and (3) failure to disclose the applicable statute of
limitations (Claim Four). Because Garcia raised all three of these
20160820-CA 6 2018 UT App 129Garcia v. State
claims during the underlying criminal proceedings, the post-
conviction court did not err in finding that the claims are
procedurally barred.
¶13 A person may not obtain post-conviction relief under the
PCRA for any claim that “was raised or addressed at trial or on
appeal.” Utah Code Ann. § 78B-9-106(1)(b) (LexisNexis Supp.
2017). Here, Garcia brought these claims to the district court’s
attention multiple times in motions prior to sentencing and
again at the sentencing hearing. Accordingly, the State moved
for summary judgment on these claims, invoking the procedural
bar. By doing so, the State effectively shifted the burden to
Garcia to disprove the procedural bar by a preponderance of the
evidence. See id. § 78B-9-105(2); Pinder v. State, 2015 UT 56, ¶ 39,
367 P.3d 968 (“Because the State has invoked the procedural bar
provisions of the PCRA, the burden to disprove the elements of
procedural bar falls on [the petitioner].”).
¶14 As evidenced by his own motions, Garcia raised these
claims in the district court. Garcia raised his argument that he
received ineffective assistance regarding adequate investigation
(Claim Two) in his first two motions. And he raised both the
adequacy of his plea (Claim Three) and the State’s alleged failure
to disclose the applicable statute of limitations (Claim Four) in
his third motion—which attempted to withdraw his guilty plea. 4
Because Garcia raised these three claims during the original
criminal proceedings, he has failed to show the applicability of
any exception to the procedural bar. For this reason, the post-
conviction court correctly granted the State’s summary judgment
motion on these claims.
4. Moreover, Garcia also raised, albeit briefly, Claims Two,
Three, and Four at the sentencing hearing itself. There, the
district court acknowledged Garcia’s handwritten motions and
specifically asked if there was “any other argument [Garcia
would] like to make” before being sentenced.
20160820-CA 7 2018 UT App 129Garcia v. State
III. Not Cognizable Under the PCRA
¶15 Claim Five of Garcia’s petition alleges denial of the right
to appeal. However, denial of appeal is not a claim properly
raised in a post-conviction petition. To claim that the right to
appeal has been wrongfully denied, a petitioner must first file a
Manning motion with the district court, which attempts to
reinstate the time for appeal in the underlying criminal case. See
Manning v. State, 2005 UT 61, ¶¶ 31, 36, 122 P.3d 628(recognizing that an appeal from a “knowing and voluntary
guilty plea . . . that expressly waives the right to appeal” may be
undertaken “upon a defendant’s motion,” and that “the trial or
sentencing court may reinstate the time frame for filing a direct
appeal where the defendant can prove, based on facts in the
record or determined through additional evidentiary hearings,
that he has been unconstitutionally deprived, through no fault of
his own, of his right to appeal”); see also Utah R. App. P. 4(f).
Here, Garcia attempts to raise his denial of appeal claim, for the
first time, in this post-conviction proceeding. Because he has not
yet filed a Manning motion, the post-conviction court did not err
in granting the State’s summary judgment motion on Claim Five.
CONCLUSION
¶16 For these reasons, we conclude that the post-conviction
court did not err in granting the State’s motion for summary
judgment on all five of Garcia’s claims.
¶17 Affirmed.
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